[38]Opinion
MOSK, J. In this case we confront a sensitive and complex issue: whether a special admission program which benefits disadvantaged minority students who apply for admission to the medical school of the University of California at Davis (hereinafter University) offends the constitutional rights of better qualified applicants denied admission because they are not identified with a minority. We conclude that the program, as administered by the University, violates the constitutional rights of nonminority applicants because it affords preference on the basis of race to persons who, by the University’s own standards, are not as qualified for the study of medicine as nonminority applicants denied admission.
In 1973 and 1974, plaintiff Allan Bakke, a Caucasian, applied for admission to the University, which is supported by public funds. There were 2,644 applicants for the 1973 entering class and 3,737 for the 1974 class. Only 100 places are available each year, of which 16 are filled under the special admission program in dispute; applicants for the remaining 84 places are chosen by recourse to the normal admission process.1
Bakke, who did not apply for consideration under the special program, was denied admission in both years, and was not admitted to any other medical school. He filed a complaint against the University seeking mandatory, injunctive, and declaratory relief to compel the University to admit him,2 alleging he was qualified for admission and the sole reason his application was rejected was that he was of the Caucasian race. The complaint also alleged that all students admitted under the special program were members of racial minorities, that the program applied separate, i.e., preferential, standards of admission as to them, and that the use of separate standards resulted in the acceptance of minority applicants who were less qualified for the study of medicine than Bakke and other nonminority applicants not selected. He claimed he had been the victim of invidious discrimination because of his race, in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution.
[39]The University filed a cross-complaint for declaratory relief, seeking a determination that the special admission program was valid. The cross-complaint averred that the University considers the minority status of an applicant as only one factor in selecting students for admission, and that the purposes of the special program were to promote diversity in the student body and the medical profession, and to expand medical education opportunities to persons from economically or educationally disadvantaged backgrounds. The cross-complaint did not allege that Bakke should be denied relief because of laches.
The trial court, after considering the pleadings, the deposition and declaration of Dr. George H. Lowrey, the associate dean of student affairs and chairman of the admissions committee, and the interrogatories submitted by the parties, found that the special admission program discriminated against Bakke because of his race and that he was entitled to have his application evaluated without regard to his race or the race of any other applicant. It found against the University on its cross-complaint for declaratory relief. However, the court determined that Bakke was not entitled to an order for admission to the University because, although he was qualified to be. admitted in both years in which he applied, he would not have been selected even if there had been no special program for minorities. Thus the court denied Bakke’s prayer for an injunction ordering his admission.
Both parties appeal from the ensuing judgment—Bakke from the portion of the judgment denying him admission, and the University from the determination that the special admission program is invalid and that Bakke is entitled to have his application considered without regard to his race or the race of any other applicant. Bakke renewed his application for admission subsequent to the judgment, but the University refused to evaluate his qualifications without regard to the special admission program. We transferred the cause directly here, prior to a decision by the Court of Appeal, because of the importance of the issues involved. (Cal. Const., art. VI, § 12; rule 20, Cal. Rules of Court.)
The Admission Procedure
An applicant for admission to the University is required to take the Medical College Admission Test, which measures accomplishment in four distinct areas—verbal, quantitative, general information, and science —and his score on this test is included in the application. The [40]application also calls for a description of extracurricular and community activities, a history of the applicant’s work experience, and his personal comments. In addition, the applicant is required to submit two letters of recommendation, usually one from a science teacher and one from a teacher in- another discipline, and transcripts from schools previously attended.
In 1973, the application form inquired whether the applicant desired to be considered by a special committee which passed upon the applications of persons from economically and educationally disadvantaged backgrounds. The following year a revised form was adopted;3 instead of the question relating to disadvantage, the applicant was asked whether he “describes” himself or herself as a “White/Caucasian” or a member of some other identifiable racial or ethnic group,4 and whether he wished to be considered an applicant from a minority group.
Although for 1974 and the years thereafter no specific question regarding disadvantage was mentioned on the application form, the material distributed by the University- referred to a special program to increase opportunities for medical study for students from disadvantaged backgrounds, and between 1971 and 1974 both white and minority applicants applied for the special program.5
[41]The selection of students for admission is conducted by two separate committees. The regular admission committee consists of a volunteer group of 14 or 15 faculty members and an equal number of students, all selected by the dean of the medical school.6 The special admission committee, which evaluates the applications of disadvantaged applicants only, consists of students who are all members of minority groups, and faculty of the medical school who are predominantly but not entirely minorities. Applications from those not classified as disadvantaged (including applications from minorities who do not qualify as disadvantaged) are screened through the regular admission process. The evaluation of the two groups is made independently, so that applicants considered by the special committee are rated only against one another and not against those considered in the regular admission process. All students admitted under the special program since its inception in 1969 have been members of minority groups.
The Regular Admission Program
Initially, members of the regular committee determine whether the applicant reflects sufficient promise to warrant a personal interview. Applicants with a college grade point average below 2.5 on a scale of 4.0 are summarily rejected, but a higher average does not necessarily guarantee that an interview will be afforded. In 1973, with 2,644 persons applying for admission, 815 applicants were selected for interviews under the regular program, and 462 interviews were granted in 1974 out of 3,737 applicants.
The interview sessions were conducted by one faculty member of the committee in 1973, but in 1974 each applicant was interviewed additionally by a student member. The interviewer prepares a summary of the meeting, reviews the file of the applicant, including his grade point avérage and his score on the Medical College Admission Test, and, after evaluating the applicant’s potential contribution to the medical profession, grades him on a scale of 0 to 100. The applicant’s file, including a summary of the interview but without the numerical score given by the interviewer, is then reviewed by four other committee members, two of whom are students and two' faculty, chosen at random. These four independently rate the applicant on the same scale. The scores are totalled; in 1973 the highest score an applicant could achieve was 500, [42]whereas in 1974—because two interviews were conducted rather than only one—the highest score was 600.
This combined numerical rating is based upon an assessment of the applicant derived from information in his application, his letters of recommendation, the interview summary, test scores and grade point average, as well as a consideration of his motivation, character, imagination, and the type and locale of the practice he anticipates entering in the future. For example, because there is a shortage of doctors in the northern part of the state, and Davis is located in the north, some preference is given to applicants from that area who plan to remain there to practice.7 The combined numerical rating is used as a “benchmark” for selection, although exceptions to strict numerical ranking may be made in special circumstances. For example, the University makes an exception in the unusual case of an applicant whose combined rating was “quite high” but not sufficient for admission but who is married to an applicant previously accepted.
Some attrition in acceptances normally occurs each year, and applicants whose ratings approximate those admitted may be placed on an alternate list. The dean of admissions has the discretion to select for the list applicants whose ratings will bring special skills or balance to the entering class; therefore not all unaccepted applicants with high ratings are placed on the list, and those who are so placed are not necessarily listed in order of numerical rating. Two out of three ápplicants offered admission under the regular procedure ultimately enroll at the University.
The Special Admission Program
The faculty chairman of the special admission committee initially screens the applications of those who seek to enter the University as disadvantaged students, to determine if they may properly be classified as disadvantaged.8 Those who do not qualify as disadvantaged are [43]referred to the regular admissions committee. If a candidate passes this initial scrutiny, his application is reviewed by the special committee for the purpose of determining whether he should be invited for a personal interview. In making this determination the special committee, unlike the regular committee, does not automatically disqualify an applicant who has a grade point average below 2.5.
The committee interviewed 71 out of 297 disadvantaged applicants in 1973 and 88 out of 628 in 1974. The interview is conducted by one faculty member and one student member of the special committee. The file is then reviewed by other members of the special committee, who rate the applicant.
The special committee prepares a written summary of the qualifications of the disadvantaged applicants whom it recommends for admission, and the regular committee makes the actual determination whether to accept the recommendation. In practice, the special committee’s recommendations are generally followed. The process of recommendation by the special committee and acceptance by the general committee continues until 16 applicants have been admitted under the special program.
Bakke had a grade point average of 3.51, and his scores on the verbal, quantitative, science, and general information portions of the Medical College Admission Test (expressed in percentiles) were 96, 94, 97 and 72 respectively. His application warranted an interview in both years for which he applied. In 1973, his combined numerical rating was 468 out of a possible 500, and in 1974 it was 549 out of a possible 600. He was not placed on the alternate list in either year.
Some minority students who were admitted under the special program in 1973 and 1974 had grade point averages below 2.5, the minimum required for an interview for those who did not qualify under the special program; some were as low as 2.11 in 1973 and 2.21 in 1974. According to Dr. Lowrey, if an applicant scored lower than the 50th percentile, in the science and verbal portions of the Medical College Admission Test, the committee “would look very hard at other things that would be positive” such as motivation, or some explanation for his low scores. The mean percentage scores on the test of the minority students admitted to the 1973 and 1974 entering classes under the special program were below the 50th percentile in all four areas tested. In addition, the combined [44]numerical ratings of some students admitted under the special program were 20 to 30 points below Bakke’s rating.
Dr. Lowrey stated in his declaration and deposition that the special admission program was designed to afford preferential treatment to persons who are from disadvantaged backgrounds. He stat.ed further that test scores and grades of minority applicants do not necessarily reflect their capabilities, because their low scores might be attributable to the fact that they were required to work during the school year or that they lacked the reinforcement and support which white middle-class students typically derive from their families, and without such a program, few minorities would qualify for admission to the University. A major purpose of the program, he asserted, was to promote diversity among the student body and the profession and to increase the number of doctors practicing in the minority community, where the need is great.
The trial court found that although the special admission program purports to be open to “educationally or economically disadvantaged” students, and although in 1973 and 1974 some applications for the program were received from members of the white race, only minority students had been admitted under the program since its inception, and members of the white race were barred from participation. The court concluded that the program constitutes invidious discrimination in favor of minority races and against Bakke and others whose applications were evaluated under the regular admission procedure, in violation of their rights under the Fourteenth Amendment to the United States Constitution. The University does not challenge the trial court’s finding that applicants who are not members of a minority are barred from participation in the special admission program.
The Appeal of the University
The validity of preferential admission to professional school for minorities was before the United States Supreme Court in De Funis v. Odegaard, which involved a program at the University of Washington law school. However, after granting certiorari (414 U.S. 1038 [38 L.Ed.2d 329, 94 S.Ct. 538]) the high court determined, over the dissent of four justices, that the case was moot, and vacated the judgment of the [45]Washington Supreme Court (416 U.S. 312 [40 L.Ed.2d 164, 94 S.Ct. 1704].)9
The question before us has generated extraordinary interest in academia, as well as a proliferation of debate among legal writers and commentators. (See, for a mere literary sampling, Redish, Preferential Law School Admissions and the Equal Protection Clause: An Analysis of the Competing Arguments (1974) 22 U.C.L.A.L.Rev. 343; De Funis Symposium (1975) 75 Colum.L.Rev. 483; Sandalow, Racial Preferences: The Judicial Role (1975) 42 U.Chi.L.Rev. 653; Symposium, De Funis: The Road Not Taken (1974) 60 Va.L.Rev. 917; Ely, The Constitutionality of Reverse Racial Discrimination (1974) 41 U.Chi.L.Rev. 723; O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education (1971) 80 Yale L.J. 699; Graglia, Special Admission of the “Culturally Deprived” to Law School (1970) 119 U.Pa.L.Rev. 351; Ginger (edit.), De Funis versus Odegaard and the University of Washington (1974); Cohen, The De Funis Case: Race and The Constitution, (Feb. 8, 1975) The Nation 135; O’Neil, Discriminating Against Discrimination (1975).) No fewer than 26 amici curiae briefs were filed in the United States Supreme Court in De Funis. Indeed, Justice Brennan, dissenting in De Funis from the determination of mootness, remarked that “[F]ew constitutional questions in recent history have stirred as much debate ....” (416 U.S. at p. 350 [40 L.Ed.2d at p. 188].)
[46]We note at the outset that a number of social scientists and anthropologists deem “race” to be an anachronistic concept; AshleyMontagu has termed it mischievous and retardive. Many experts consider “ethnic” to be more, accurate since it relates to characteristics of groups that may be, in different proportions, physical, national, cultural, linguistic, religious or ideological. Unfortunately lexicon is imprecise and until an improved taxonomy emerges we shall probably be compelled to discuss problems such as that before us in terms of race. (See, e.g., Allport, The Nature of Prejudice (1954) pp. xv-xvi.)
We also observe preliminarily that although it is clear that the special admission program classifies applicants by race, this fact alone does not render it unconstitutional. Classification by race has been upheld in a number of cases in which the purpose of the classification was to benefit rather than to disable minority groups.
Thus, such classifications have been approved to achieve integration in the public schools (Swann v. Board of Education (1971) 402 U.S. 1 [28 L.Ed.2d 554, 91 S.Ct. 1267]; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 950-951 [92 Cal.Rptr. 309, 479 P.2d 669]), to require a school system to provide instruction in English to students of Chinese ancestry (Lau v. Nichols (1974) 414 U.S. 563 [39 L.Ed.2d 1, 94 S.Ct. 786]),10 and to uphold the right of certain non-English speaking persons to vote (Katzenbach v. Morgan (1966) 384 U.S. 641 [16 L.Ed.2d 828, 86 S.Ct. 1717]; Castro v. State of California (1970) 2 Cal.3d 223 [85 Cal.Rptr. 20, 466 P.2d 244]). These cases differ from the special admission program in at least one critical respect, however. In none of them did the extension of a right or benefit to a minority have the effect of depriving persons who were not members of a minority group of benefits which they would otherwise have enjoyed.
The University suggests that this. distinction is not apposite with respect to the school integration decisions because the effort to integrate schools discommodes nonminorities by requiring some to attend schools in neighborhoods other than their own. We cannot accept this as a valid analogy. Whatever the inconveniences and whatever the techniques employed to achieve integration, no child is totally deprived of an education because he cannot attend a neighborhood school, and all students, whether or not they are members of a minority race, are subject [47]to equivalent burdens. As the Supreme Court has said numerous times since Brown v. Board of Education (1954) 347 U.S. 483 [98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180], there is no right to a segregated education. The disadvantages suffered by a child who must attend school some distance from his home or is transferred to a school not of his qualitative choice cannot be equated with the absolute denial of a professional education, as occurred in the present case.
It is plain that the special admission program denies admission to some white applicants solely because of their race.11 Of the 100 admission opportunities available in each year’s class, 16 are set aside for disadvantaged minorities, and the committee admits applicants who fall into this category until these 16 places are filled. Since the pool of applicants available in any year is limited, it is obvious that this procedure may result in acceptance of minority students whose qualifications for medical study, under the standards adopted by the University itself, are inferior to those of some white applicants who are rejected.
This situation occurred in 1973 and 1974. The combined numerical rating assigned by the committee to each applicant who is granted an interview includes not only an evaluation of his academic scores but an assessment of all factors which the committee considers relevant to the successful pursuit of medical studies, such as an applicant’s motives, character, and academic grades. This combined rating, with a few special exceptions, serves as the “benchmark” for admission.
The dissent charges that the combined numerical rating of an applicant does not include all his qualifications because it does not contain one factor favorable to disadvantaged minority applicants, i.e., their race or ethnic background. This suggestion is based upon the theory of the dissent that minority status in and of itself constitutes a substantive qualification for medical study and that, therefore, the fact that the combined numerical rating of a minority applicant accepted for admission was lower than the rating of a white rejected for admission does not [48]mean that the minority applicant was less qualified than the white student. (Post, p. 82, fn. 11.) But this argument simply assumes the answer to the question at issue. Bakke claims that minority status is not a relevant consideration in determining whether an applicant is qualified for admission, and that admission decisions must be made without regard to the racial or ethnic background of a prospective student. To accept at the outset the premise that a minority applicant may be better qualified because of his race would foreclose consideration of the constitutional issue raised by the complaint.
The rating of some students admitted under the special program in 1973 and 1974 was as much as 30 points below that assigned to Bakke and other nonminority applicants denied admission. Furthermore, white applicants in the general admission program with grade point averages below 2.5 were, for that reason alone, summarily denied admission, whereas some minority students in the special program were admitted with grade point averages considerably below 2.5. In our view, the conclusion is inescapable that at least some applicants were denied admission to the medical school solely because they were not members of a minority race.
The fact that all the minority students admitted under the special program may have been qualified to study medicine does not significantly affect our analysis of the issues. In the first place, as the University freely admits, Bakke was also qualified for admission, as were hundreds, if not thousands of others who were also rejected. In this context the only relevant inquiry is whether one applicant was more qualified than another. Secondly, Bakke alleged that he and other nonminority applicants were better qualified for admission than.the minority students accepted under the special admission program, and the question we must decide is whether the rejection of better qualified applicants on racial grounds is constitutional.
The issue to be determined thus narrows to whether a racial classification which is intended to assist minorities, but which also has the effect of depriving those who are not so classified of benefits they would enjoy but for their race, violates the constitutional rights of the majority.12
[49]Two distinct inquiries emerge at this point; first, what test is to be used in determining whether the program violates the equal protection clause; and second, does the program meet the requirements of the applicable test.
The general rule is that classifications made by government regulations are valid “if any state of facts reasonably may be conceived” in their justification. (McGowan v. Maryland (1961) 366 U.S. 420, 426 [6 L.Ed.2d 393, 399, 81 S.Ct. 1101].) This yardstick, generally called the “rational basis” test, is employed in a variety of contexts to determine the validity of government action (e.g., Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 8 [39 L.Ed.2d 797, 803-804, 94 S.Ct. 1536]; Dandridge v. Williams (1970) 397 U.S. 471, 485 [25 L.Ed.2d 491, 501-502, 90 S.Ct. 1153]) and its use signifies that a reviewing court will strain to find any legitimate purpose in order to uphold the propriety of the state’s conduct.
But in some circumstances a more stringent standard is imposed. Classification by race is subject to strict scrutiny, at least where the classification results in detriment to a person because of his race.13 In the case of such a racial classification, not only must the purpose of the classification serve a “compelling state interest,” but it must be demonstrated by rigid scrutiny that there are no reasonable ways to achieve the state’s goals by means which impose a lesser limitation on the rights of the group disadvantaged by the classification. The burden in both respects is upon the government. (E.g., Dunn v. Blumstein (1972) 405 U.S. 330, 342-343 [31 L.Ed.2d 274, 284, 92 S.Ct. 995]; Loving v. Virginia (1967) 388 U.S. 1, 11 [18 L.Ed.2d 1010, 1017, 87 S.Ct. 1817]; McLaughlin v. Florida (1964) 379 U.S. 184, 192-193 [13 L.Ed.2d 222, 228-229, 85 S.Ct. 283].) It has been more than three decades since any decision of the United States Supreme Court upheld a classification which resulted in detriment solely on the basis of race: Korematsu v. United States (1944) 323 U.S. 214 [89 L.Ed. 194, 65 S.Ct. 193], and Hirabayashi v. United States (1943) 320 U.S. 81 [87 L.Ed. 1774, 63 S.Ct. 1375], both of which were war-inspired cases that have been severely criticized subsequently.14
[50]The University asserts that the appropriate standard to be applied in determining the validity of the special admission program is the more lenient “rational basis” test. It contends that the “compelling interest” measure is applicable only to a classification which discriminates against a minority, reasoning that racial classifications are suspect only if they result in invidious discrimination (e.g., Brown v. Board of Education, supra, 347 U.S. 483, 494 [98 L.Ed. 873, 880]); and that invidious discrimination occurs only if the classification excludes, disadvantages, isolates, or stigmatizes a minority or is designed to segregate the races. The argument is that white applicants denied admission are not stigmatized in the sense of having cast about them an aura of inferiority; therefore, it is sufficient if the special admission program has a rational relation to the University’s goals.
We cannot agree with the proposition that deprivation based upon, race is subject to a less demanding standard of review under the. Fourteenth Amendment if the race discriminated against is the majority, rather than a minority. We have found no case so holding,15 and we do not hesitate to reject the notion that racial discrimination may be more_ easily justified against one race than jinother, nor can we permit the validity of such discrimination to be determined by a mere census count of the races.16
That whites suffer a grievous disadvantage by reason of their exclusion from the University on racial grounds is abundantly clear. The fact that they are not also invidiously discriminated against in the sense that a stigma is cast upon them because of their race, as is often the [51]circumstance when the discriminatory conduct is directed against a minority, does not justify the conclusion that race is a suspect classification only if the consequences of the classification are detrimental to minorities.
Regardless of its historical origin, the equal protection clause by its literal terms applies to “any person,”17 and its lofty purpose, to secure equality of treatment to all, is incompatible with the premise that some races may be afforded a higher degree of protection against unequal treatment than others.
Although there are no decisions of the United States Supreme Court directly in point, recent decisions of the high court demonstrate a marked reluctance to apply different standards to determine the rights of minorities and members of the majority. Thus, in McDonald v. Santa Fe Trail Transportation Co. (1976) 427 U.S. 273 [49 L.Ed.2d 493 96 S.Ct. 2574], the court held that title VII and section 1981 of title 42 of the United States Code prohibit discrimination against all races on the same terms. Significantly, the court relied upon the broad language of these statutes, which protect “any individual” and “all persons” from discrimination. Indeed, in spite of the fact that section 1981 states that “all persons . . . shall have the same right in every State ... to make and enforce contracts ... as is enjoyed by white citizens” (italics added), and that the “immediate impetus” for the statute upon which section 1981 was based “was the necessity for further relief of the Constitutionally emancipated former Negro slaves” the court found that the history of the measure justified the conclusion that it was intended to apply on equal terms to all races.18
[52]We come, then, to the question whether the University has demonstrated that the special admission program is necessary to serve a compelling governmental interest and that the objectives of the program cannot reasonably be achieved by some means which would impose a lesser burden on the rights of the majority.
The University seeks to justify the program on the ground that the admission of minority students is necessary in order to integrate the medical school and the profession.19 The presence of a substantial number of minority students will not only provide diversity in the student body, it is said, but will influence the students and the remainder of the profession so that they will become aware of the medical needs of the minority community arid be encouraged to assist in meeting those demands.20 Minority doctors will, moreover, provide role models for younger persons in the minority community, demonstrating to them that they can overcome the residual handicaps inherent from past discrimination.
Furthermore, the special admission program will assertedly iricrease the number of doctors willing to serve the minority community, which is desperately short of physicians. While the University concedes it cannot guarantee that all the applicants admitted under the special program will ultimately practice as doctors in disadvantaged communities, they have expressed an interest in serving those communities and there is a likelihood that many of them will thus fashion their careers.
[53]Finally, it is urged, black physicians would have a greater rapport with patients of their own race and a greater interest in treating diseases which are especially prevalent among blacks, such as sickle cell anemia, hypertension, and certain skin ailments.
We reject the University’s assertion that the special admission program may be justified as compelling on the ground that minorities would have more rapport with doctors of their own race and that black doctors would have a greater interest in treating diseases prevalent among blacks. The record contains no evidence to justify the parochialism implicit in the latter assertion; and as to the former, we cite as eloquent refutation to racial exclusivity the comment of Justice Douglas in his dissenting opinion in De Funis: “The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans . . . (416 U.S. at p. 342 [40 L.Ed.2d at p. 183].)
We may assume arguendo that the remaining objectives which the University seeks to achieve by the special admission program meet the exacting standards required to uphold the validity of a racial classification insofar as they establish a compelling governmental interest. Nevertheless, we are not convinced that the University has met its burden of demonstrating that the basic goals of the program cannot be substantially achieved by means less detrimental to the rights of the majority.
The two major aims of the University are to integrate the student body and to improve medical care for minorities. In our view, the University has not established that a program which discriminates against white applicants because of their race is necessary to achieve either of these goals.
It is the University’s claim that if special consideration is not afforded to disadvantaged minority applicants, almost none of them would gain admission because, no matter how large the pool.of applicants, the grades and test scores of most minority applicants are lower than those of white applicants. In support of this assertion, the University declared that in the two years before the special admission program was [54]instituted, only two blacks and one Mexican-American qualified for admission, whereas between 1970 and 1974, while the program was in operation, 33 Mexican-Americans, 26 blacks, and 1 American Indian were admitted.21 But this showing is insufficient to satisfy the University’s burden. For there is no evidence as to the nature of the admission standards prior to 1969, when the special admission program began, and it may well be that virtually determinative weight was accorded to test scores and grades. Thus the fact that few minorities were accepted before 1969 was not necessarily the result of the absence of a preference for minorities on strictly racial grounds.
We observe and emphasize in this connection that the University is not required to choose between a racially neutral admission standard applied strictly according to grade point averages and test scores, and a standard which accords preference to minorities because of their race.
While minority applicants may have lower grade point averages and test scores than others, we are aware of no rule of law which requires the University to afford determinative weight in admissions to these quantitative factors. In practice, colleges and universities generally consider matters other than strict numerical ranking in admission decisions. (O’Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education (1971) 80 Yale L.J. 699, 701-705.) The University is entitled to consider, as it does with respect to applicants in the special program, that low grades and test scores may not accurately reflect the abilities of some disadvantaged students; and it may reasonably conclude that although their academic scores are lower, théir potential for success in the school and the profession is equal to or greater than that of an applicant with higher grades who has not been similarly handicapped.22
In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview, [55]recommendations, character, and matters relating to the needs of the profession and society, such as an applicant’s professional goals. In short, the standards for admission employed by the University are not constitutionally infirm except to the extent that they are utilized in a racially discriminatory manner. Disadvantaged applicants of all races must be eligible for sympathetic consideration, and no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.23 We reiterate, in view of the dissent’s misinterpretation, that we do not compel the University to utilize only “the highest objective academic credentials” as the criterion for admission.
In addition to flexible admission standards, the University might increase minority enrollment by instituting aggressive programs to identify, recruit, and provide remedial schooling for disadvantaged students of all races who are interested in pursuing a medical career and have an evident talent for doing so.
Another ameliorative measure which may be considered is to increase the number of places available in the medical schools, either by allowing additional students to enroll in existing schools or by expanding the schools. In 1974, the University received almost 40 applications for each place available, and the entering class in all the medical schools in the state in the last academic year totalled only 1,094 students. (Assn. of American Medical Colleges, Medical School Admission Requirements (1976) table 2-B, pp. 11-12.)
None of the foregoing measures can be related to race, but they will provide for consideration and assistance to individual applicants who have suffered previous disabilities, regardless of their surname or color. So far as the record discloses, the University has not considered the adoption of these or other nonracial alternatives to the special admission program.
Whether these measures, taken together, will result in the enrollment of precisely the same number of minority students as under the current [56]special admission program, no one can determine. It may be that in some years there would be fewer and in some years more minorities enrolled than under the present scheme. But even if somewhat fewer minority applicants are admitted without a program which focuses on race, the University has not shown that the second major objective of the program—the need for more doctors to serve the minority community —will be appreciably impaired. This shortage is perhaps the most serious of the problems which the University seeks to correct by means of its program. According to statistics cited by the University and amici curiae, the National Lawyers Guild and the Mexican-American Legal Defense Fund, blacks and other races have a life expectancy of 6.3 years less than whites, their maternal mortality rate is three times higher than that of whites, and their infant mortality is almost twice as high. (U.S. Dept, of Commerce, Bureau of the Census, Current Population Reports: The Social and Economic Status of the Black Population in the U.S. (1974) tables 82, 84.) We do not doubt that amelioration of this societal infirmity is one of the most urgent tasks of the medical schools and the medical profession.
We question, however, whether the University has established that the special admission program is the least intrusive or even the most effective means to achieve this goal. The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an “interest” in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will cany out this intention, and that it is more likely they will practice in minority communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.
Moreover, while it may be true that the influence exerted by minorities upon the student body and the profession will persuade some [57]nonminority doctors to assist in meeting these community medical needs, it is at best a circuitous and uncertain means to accomplish the University’s objective. It would appear that more directly effective methods can be devised, such as academic and clinical courses directed to the medical needs of minorities, and emphasis upon the training of general practitioners to serve the basic needs of the poor.24
The University cites certain cases in support of its position. A substantial number of decisions, most of them determined under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) have upheld the right of minorities to preference in employment. (E.g., Franks v. Bowman Transportation, Inc. (1976) 424 U.S. 747 [47 L.Ed.2d 444, 96 S.Ct. 1251]; United States v. Masonry Cont. Ass’n of Memphis, Inc. (6th Cir. 1974) 497 F.2d 871, 874, 877; NAACP v. Allen (5th Cir. 1974) 493 F.2d 614, 617, 622; Carter v. Gallagher (8th Cir. 1971) 452 F.2d 315, 318, 331; United States v. Ironworkers Local 86 (9th Cir. 1971) 443 F.2d 544, 548, 554.) The University asserts that these decisions establish the validity of a preference to minorities on the basis of race even if the classification results in detriment to the majority.
The authorities are not persuasive. In all these cases the court found that the defendant had practiced discrimination in the past and that the preferential treatment of minorities was necessary to grant them the opportunity for equality which would have been theirs but for the past discriminatory conduct. Absent a finding of past discrimination—and thus the need for remedial measures to compensate minorities for the prior discriminatoiy practices of the employer—the federal courts, with one exception, have held that the preferential treatment of minorities in employment is invalid on the ground that it deprives a member of the
[58]majority of a benefit because of his race.25 (Chance v. Board of Examiners (2d Cir. 1976) 534 F.2d 993; Kirkland v. New York St. Dept. of Correctional Serv. (2d Cir. 1975) 520 F.2d 420, 427-428; Weber v. Kaiser Aluminum & Chemical Corp. (E.La. 1976) 415 F.Supp 761, Brunetti v. City of Berkeley (N.D.Cal. 1975) H C-74-0051 RFP;26 Anderson v. San Francisco Unified School District (N.D.Cal. 1972) 357 F.Supp. 248, 250.)27
It is important to observe that all of these cases, with the exception of Weber; hold that it is unconstitutional reverse discrimination to grant a [59]preference to a minority employee in the absence of a showing of prior discrimination by the particular employer granting the preference. Obviously, this principle would apply whether the preference was compelled by a court or voluntarily initiated by the employer. Moreover, Brunetti, Anderson and Weber all invalidated voluntary programs of preference for minorities.28 Thus, there is no merit in the assertion of the dissent that there is some undefined constitutional significance to the fact that the University elected to adopt the special admission program and was not compelled to do so by court order. To the victim of racial discrimination the result is not noticeably different under either circumstance.
There is no evidence in the record to indicate that the University has discriminated against minority applicants in the past. Nevertheless amici curiae ask that we find, by analogy to the employment discrimination cases, that the University’s reliance on grade point averages and the Medical College Admission Test in evaluating applicants amounted to discrimination in fact against minorities. Amici claim that the application of these quantitative measures by the University had resulted in the exclusion of a disproportionate number of minority applicants, that grades and test scores are not significantly related to a student’s performance in medical school or in the profession, and that the test is culturally biased. In the recent case of Washington v. Davis, supra, 426 U.S. 229, the United States Supreme Court has made it clear that the standard for adjudicating claims of racial discrimination on constitutional grounds is not the same as the standard applicable to cases decided under title VII, and that absent a racially discriminatory purpose, a test is not invalid solely because it may have a racially disproportionate impact. Thus, the fact that minorities are underrepresented at the University would not suffice to support a determination that the University has discriminated against minorities in the past. (See also Tyler v. Vickery (5th Cir. 1975) 517 F.2d 1089, 1095.) In any event, we are not called upon to decide the issue raised by amici in the present case. Neither party contended in the trial court that the University had practiced discrimina[60]tion, and no evidence with regard to that question was admitted below.29 Thus, on the basis of the record before us, we must presume that the University has not engaged in past discriminatory conduct.
The University relies upon Alevy v. Downstate Medical Center, supra, 384 N.Y.Supp.2d 82. There, as here, a white medical student alleged that he had been discriminated against in admission to a publicly funded medical school because of preferences accorded to black and Puerto Rican applicants in the admission program. Although the court found that the school had discriminated in favor of the minority applicants, it did not decide whether the preference was constitutional. Rather, it held that the petitioner did not demonstrate his right to relief because he had failed to show that he would have been admitted if no preference had been extended to minority applicants. The opinion contains dictum which is in conflict with some of our reasoning, but the court’s holding is not at variance with our determination that the special admission program is invalid.30
[61]Few legal issues in recent years have troubled and divided legal commentators as much as that which we decide today. Observers of varied persuasion have demonstrated an ambivalence regarding the lawfulness and social desirability of preferential admission policies. These doubts, induced by disturbed sensibilities, are readily comprehensible.
On the one hand, it is urged that preferential treatment for minorities is essential in order to afford them an opportunity to enjoy the benefits which would have been theirs but for more than a century of exploitation and discrimination by the prevailing majority. Although legal impediments to equality have been removed by the judiciary and by the Congress, goes the argument, minorities still labor under severe handicaps. To achieve the American goal of true equality of opportunity among all races, more is required than merely removing the shackles of past formal restrictions; in the absence of special assistance, minorities will become a “self-perpetuating group at the bottom level of our society who have lost the ability and the hope of moving up.” (Kaplan, Equal in an Unequal World: Equality for the Negro—The Problem of Special Treatment (1966) 61 Nw.U.L.Rev. 363, 374.) Preferential admissions will be necessary only until minorities can compete on an equal basis, and will benefit not only the applicant who is specially treated, but also the minority community in general.31
. The persuasiveness of these arguments cannot be denied, for the ends sought by such programs are clearly just if the benefit to minorities is viewed in isolation. But there are more forceful policy reasons against preferential admissions based on race. The divisive effect of such [62]preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony.32 The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race—any race—is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case.
While a program can be damned by semantics, it is difficult to avoid considering the University scheme as a form of an education quota system, benevolent in concept perhaps, but a revival of quotas nevertheless. No college admission policy in histoiy has been so thoroughly discredited in contemporary times as the use of racial percentages. Originated as a means of exclusion of racial and religious minorities from higher education, a quota becomes no less offensive when it serves to exclude a racial majority. “No form of discrimination should be opposed more vigorously than the quota system.” (McWilliams, A Mask For Privilege (1948) p. 238.)33
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis [63]of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality. The safest course, the one most consistent with the fundamental interests of all races and with the design of the Constitution, is to hold, as we do, that the special admission program is unconstitutional because it violates the rights guaranteed to the majority by the equal protection clause of the Fourteenth Amendment of the United States Constitution.
Bakke’s Appeal
As set forth above, the trial court found that Bakke would not have been admitted to either the 1973 or 1974 entering class at the University even if there had been no special admission program. However, in reaching this conclusion the court ruled that the burden of proof remained with Bakke throughout the trial. He asserts that since he established that the University had discriminated against him because of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even without the special admission program.
We agree. Under the general rule, the burden of proof would remain with plaintiff Bakke throughout the trial on the issue of his admission. (Evid. Code, § 500.) However, a substantial number of federal cases involving employment discrimination under title VII have held that if the plaintiff establishes that the employer has been guilty of discrimination in hiring or promotion, and he brings himself within the class of employees who suffered discrimination, the burden of showing that he was unqualified for the job or. the promotion rests with the employer. (See, e.g., Franks v. BowmanTransportation, Inc., supra, 424 U.S.747, 772 [47 L.Ed.2d 444, 466, 96 S.Ct. 1251]; Mims v. Wilson (5th Cir. 1975) 514 F.2d 106, 110; Meadows v. Ford Motor Company (6th Cir. 1975) 510 F.2d 939, 948; Baxter v. Savannah Sugar Refining Corporation (5th Cir. 1974) 495 F.2d 437, 444-445.) As the United States Supreme Court stated in the Franks case, “No reason appears . . . why the victim rather than the perpetrator of the illegal act should bear the burden of proof. . . .” (424 U.S. at p. 773, fn. 32 [47 L.Ed.2d at p. 466].)
By analogy to these decisions, we hold that the trial court should have ruled that since Bakke successfully demonstrated that the University had unconstitutionally discriminated against him, the burden of proof shifted to the University to establish that he would not have been admitted to [64]the 1973 or 1974 entering class without the invalid preferences. In these circumstances, we would ordinarily remand the case to the trial court for the purpose of determining, under the proper allocation of the burden of proof, whether Bakke would have been admitted to the 1973 or 1974 entering class absent the special admission program. (See Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 775 [91 Cal.Rptr. 745, 478 P.2d 465].)34 However, on appeal the University has conceded that it cannot meet the burden of proving that the special admission program did not result in Bakke’s exclusion. Therefore, he is entitled to an order that he be admitted to the University.
The judgment is affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. Bakke shall recover his costs on these appeals.
Wright, C. J., McComb, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
The determination that 16 students would be admitted under the special program was made by a resolution of the faculty of the medical school. Whether that figure was randomly selected, or has some rationale, is not revealed by the evidence.
He prayed for an alternative writ of mandate directing his admission, for an order compelling the University to show cause why it should not be enjoined from denying him admission, and for a declaration that he was entitled to admission.
The change in the application form resulted when, in 1974, the University joined the American Medical College Application Service, which acts as a clearing house for applications to medical schools; it adopted the form prescribed by that organization.
The application specifically listed “Black/Afro-American, American Indian, Mexican/American or Chicano, Oriental/Asian-American, Puerto Rican (Mainland), Puerto Rican (Commonwealth), Cuban.” There was a space labelled “Other” for those who belonged to a minority not enumerated.
The record is not clear as to how and to whom the material regarding the special admission program was distributed. The statement is headed “Program to Increase Opportunities in Medical Education for Disadvantaged Citizens,” and reads in part,
“A special subcommittee of the Admissions Committee, comprised of faculty and medical students, evaluates applicants from economically and/or educationally disadvantaged backgrounds who request on the application form such an evaluation. Ethnic minorities are not categorically considered under the Task Force Program unless they are from disadvantaged backgrounds. Our goals are; 1) identification and recruitment of potential candidates for admission to medical school in the near future, and 2) stimulation of career interest in the health professions among junior high and high school students.
“After receiving all pertinent information, selected applicants will receive a letter inviting them to the School of Medicine in Davis for an interview. The interviews are conducted by at least one faculty member and one student member of the Task Force Subcommittee. Recommendations are then made to the full Admissions Committee. Task Force faculty are also members of the Admissions Committee....”
In 1973 there were more faculty members than students on this committee, but their numbers were equal in 1974.
Bakke does not challenge the preference accorded to applicants from the northern part of the state, nor does he claim that he would have been admitted but for that preference. Indeed, the record does not indicate that any applicant in 1973 or 1974 was granted a preference because he planned to practice in Northern California.
The chairman determines whether an applicant is disadvantaged by examining his application for such clues as whether he has been granted a waiver of the application fee, which requires a means test, whether he had in the past participated in programs for the disadvantaged, whether he worked during school, and the occupational background and education of his parents.
The program involved in De Funis was in some respects similar to the one in the present case. There, as here, a white student who was denied admission claimed that the program violated his rights under the Fourteenth Amendment. The trial court ruled in his favor, but its judgment was reversed by the Washington Supreme Court, which found a compelling state interest in integration of the school and the profession. (De Funis v. Odegaard (1973) 82 Wn.2d 11 [507 P.2d 1169, 1182].)
The United States Supreme Court determined that the case was moot because De Funis had later been admitted to the law school, and was about to graduate. It vacated the' Washington judgment and remanded the case for such proceedings as the Washington Supreme Court might deem appropriate. Justice Douglas wrote a separate dissenting opinion on the merits (416 U.S. 312, 320 [40 L.Ed.2d 164, 171]), and joined Justices White and Marshall in Justice Brenrian’s opinion that the case was not moot (id., at p. 348 [40 L.Ed.2d at pp. 186-187]).
Upon remand, four justices of the Washington Supreme Court were of the opinion that the court’s prior decision should be reinstated. However, this view failed to command a majority. Three other justices, without considering the merits, determined that dismissal of the complaint was mandatory because the United States Supreme Court had vacated the prior judgment. Two justices, who had dissented from the court’s original decision upholding the validity of the preferential program, again dissented. Although they were of the view that the case should not be dismissed, they reiterated the opinions they had "previously expressed that the preferences afforded to minority groups were unconstitutional. (De Funis v. Odegaard (1974) 84 Wn.2d 617 [529 P.2d 438, 445, 448].)
Lau was decided under section 601 of the Civil Rights Act of 1964 (42 U.S.C. § 2000d).
The dissent states that whites are not excluded on racial grounds because the great majority of the applicants accepted are white. However, the fact that not all whites are excluded because of their race does not mean that some of them do not suffer such discrimination. In any event, Bakke alleges that he was excluded because he was white, and that the special admission program is unconstitutional for that reason; it is to this issue which we must address ourselves.
The dissent speaks of the majority’s “disproportionate advantage” (post, p. 75), but it fails to suggest how Bakke, rejected by the medical school, enjoys disproportionate or any advantage.
We question the characterization by the dissent of racial classifications which favor minorities as “benign.” That description in the present context is deemed to mean “favorable”; and while there can be no doubt that the special admission program is favorable to minorities, it certainly cannot be said to favor the majority. As the Washington Supreme Court forthrightly declared in its original opinion, . . the [49]minority admissions policy is certainly not benign with respect to nonminority students who are displaced by it.” (De Funis v. Odegaard, supra, 507 P.2d 1169, at p. 1182.)
In some of the cases cited above, in which a benefit to one racial group did not cause detriment to another, the United States Supreme Court has employed the more lenient “rational basis” test. (E.g., Katzenbach v. Morgan, supra, 384 U.S. 641, 651, 657-658 [16 L.Ed.2d 828, 839, 86 S.Ct. 1717].)
E.g., Rostow, The Japanese-American Cases—A Disaster (1945) 54 Yale L.J. 489.
Alevy v. Downstate Medical Center (1976) 39 N.Y.2d 326 [384 N.Y.Supp.2d 82], which involved the constitutionality of a preferential admission program, contains language by way of dictum that the appropriate test in deciding the constitutionality of such a program is neither of the two discussed above, but a third standard which the court claimed is gradually evolving in recent decisions of the United States Supreme Court. We discuss this case infra.
A convincing refutation of the University’s argument is made by a commentator as follows: “The argument that a racial classification which discriminates against white people is not inherently suspect implies that the white majority is monolithic and so politically powerful as not to require the constitutional safeguards afforded minority racial groups. But the white majority is pluralistic, containing within itself a multitude of religious and ethnic minorities—Catholics, Jews, Italians, Irish, Poles—and many others who are vulnerable to prejudice and who to this day suffer from the effects of past discrimination. Such groups have only recently begun to enjoy the benefits of a free society and should not be exposed to new discriminatory bars, even if they are raised in the cause of compensation to certain racial minorities for past inequities.” (Lavinsky, De Funis v. Odegaard; The “Non-Decision” With A Message (1975) 75 Colum.L.Rev. 520, 527.)
The Supreme Court has emphasized that “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say.that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” (Shelley v. Kraemer (1948) 334 U.S. 1, 22 [92 L.Ed. 1161, 1185, 68 S.Ct. 836, 3 A.L.R.2d 441].)
Although the Fourteenth Amendment was originally enacted to secure the freedom and equality of blacks, its protection has been extended to other races as well, and members of all races share in the protection afforded by that provision. (Yick Wo v. Hopkins (1886) 118 U.S. 356, 369 [30 L.Ed. 220, 226, 6 S.Ct. 1064]; Slaughter-House Cases (1873) 83 U.S. (16 Wall.) 36, 71-72 [21 L.Ed. 394].) Some statements of the United States Supreme Court imply that all racial classifications which result in a detriment are measured by the “compelling interest” test. (E.g., Hirabayashi v. United States, supra, 320 U.S. 81, 100 [87 L.Ed. 1774, 1785-1786]; Loving v.. Virginia, supra, 388 U.S. 1, 9 [18 L.Ed .2d 1010, 1016]; McLaughlin v. Florida, supra, 379 U.S. 184, 191-192 [13 L.Ed.2d 222, 227-229]; but see Korematsu v. United States, supra, 323 U.S. 214, 216 [89 L.Ed. 194, [52198]-199]; Wright, The Role of the Supreme Court (1968) 54 Cornell L.Rev. 1, 18; Ely, The Constitutionality of Reverse Racial Discrimination (1974) 41 U.Chi.L.Rev. 723, 727-735.)
Ely suggests that classification by race is not suspect if a member of the majority race discriminates against others of the same race because the majority is not likely to underestimate the needs and qualifications of persons of the same race and because the discrimination would not be motivated by racial prejudice. We find wholly unacceptable the notion that racial discrimination may be more readily justified because the persons who make the decision to discriminate belong to the same racial group as the person discriminated against. The right to equal protection of the laws is personal. (Shelley v. Kraemer, supra, 334 U.S. at p. 22 [92 L.Ed. at p. 1185]; Mitchell v. United States (1941) 313 U.S. 80, 97 [85 L.Ed. 1201, 1212, 61 S.Ct. 873]). Surely the complexion of the person who discriminates cannot be a significant factor in deciding whether an individual has been deprived of his right to equal protection.
The total number of blacks, Mexican-Americans, American Indians, and mainland Puerto Ricans enrolled in medical schools between 1969 and 1974 was only 8 percent. (Assn. of American Medical Colleges, Medical School Admission Requirements (1976) table 6-C, p. 52.)
No one can gainsay the premise that a university is more than an edifice of classrooms; it is a composite intellectual atmosphere to which both the faculty and students contribute substantially.
Six Mexican-Americans, 1 black, and 41 Asians were admitted between 1970 and 1974 without the aid of the program, and 12 Asians were admitted under the program.
The view that minority enrollment may be increased by revising admission standards to focus on the disadvantaged has been criticized on the ground that without racially discriminatory programs, a very large increase in the percentage of disadvantaged students accepted for admission would be required in order to achieve substantial integration, resulting in the exclusion of significant numbers of the most talented applicants. (Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 690-691.) We note, however, that of the total number of students who applied for the special admission program, only one in five was white.
Justice Douglas in his opinion in De Funis adopts a similar rationale. He states, “There is no constitutional right for any race to be preferred. . . . There is no superior person by constitutional standards. A De Funis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability no matter what his race or color., Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.” (416 U.S. at pp. 336-337 [40 L.Ed.2d at p. 180].)
According to one study, a major problem with the health care system is the “gross misallocation of sophisticated medical talent, distortions that reflect the attractions of income, not the attractions to service .... [T]he highest paid serve those areas which, by all standards, are already saturated with service .... The problem is not volume of service, but distribution of service. The system has been described as a mixture of technical virtuosity among specialists, on the one hand, with inadequacies in the development of minimum essential care on the other.” (Sultan & Therrio, Cal. Health Manpower, Need to 1980, Cal. Regional Medical Program, Oakland, 1974.) Other commentators have estimated that while there are 85 specialists practicing for each 100,000 Californians, 66 specialists would represent an adequate distribution; and that there are only 34 general practitioners serving the same population, whereas 50 would be required for an adequate level of care. (Paxton, Doctor Shortage? It’s Narrowing Down to Primary Care (Mar. 1973) Medical Economics p. 104; O’Sullivan, The Health Manpower Sourcebook (Health Services Education Council, San Jose, 1973) p. 3.11.)
The dissent challenges this statement as overbroad, claiming that a number of cases have compelled “affirmative action” in the employment context, absent a showing that a particular employer has engaged in racial discrimination in the past. In fact, in all the federal cases cited by the dissent for this proposition (post, p. 71, fn. 6), there was a finding by either a court or an administrative agency that the labor- unions which supplied employees to the employer had been guilty of discriminatory practices. In Weiner v. Cuyahoga Community College District (1969) 19 Ohio St.2d 35 [48 Ohio Ops.2d 4, 249 N.E.2d 907], the employer was required only to give “unequivocal assurance of positive equal employment opportunity efforts” and was not called upon to assure that a certain percentage of persons hired would be from the minority community.
Furthermore, the dissent erroneously claims that Washington v. Davis (1976) 426 U.S. 229 [48 L.Ed.2d 597, 96 S.Ct. 2040], stands for the proposition that “benign” racial classifications are constitutional. (Post, pp. 71-72.) That case holds only that affirmative efforts of the Washington D.C. police department to recruit black officers negates any inference that the department was guilty of discrimination.
Brunetti is not published in federal reports.
The University attempts to distinguish Anderson on the ground that the regulations in that case would have resulted in according a preference to minorities for almost all the administrative assignments and promotions, whereas here only 16 out of 100 places are reserved for minorities. But Anderson is not so easily distinguishable. The opinion leaves no doubt that the reason for striking down the regulation was not that an excessive number of minorities was preferred over whites, but that they were preferred at all absent a finding that the defendant had been guilty of prior discriminatory conduct.
The sole exception to the rule stated above is Porcelli v. Titus (3d Cir. 1970) 431 F.2d 1254. In that case, the board of education abolished the list previously used to promote employees to the position of principal or vice-principal in the Newark school system. The persons on the list had been chosen by competitive examination. Instead of utilizing the list, the promotions were made by the school board upon recommendation of the ' superintendent of schools, who used the race of a candidate as one factor in making his recommendations. He asserted that the system of making promotions from the list was outmoded because the number of minority students in the schools had increased dramatically since the system was adopted and that the academic performance of the students would be enhanced by an increase in the number of minority principals and vice principals. The teachers at the top of the list, who had been denied promotion, asserted that their constitutional rights had been violated. The court found against them, reasoning that the purpose of abolishing the promotional list was to integrate the faculty rather than to discriminate against the plaintiffs. The decision, with little discussion, applied the integration rationale of Brown v. Board of Education, without recognizing the distinction between a classification which grants a benefit to one race at the expense of [59]another and one which does not have that effect. This decision cannot be harmonized with the other federal decisions cited above, with which it is clearly in conflict, and we do not find its reasoning persuasive.
For example, in Brunetti, the justification for the preference was a “history of discriminatory practices throughout all segments of American society” but the program was held to be invalid because there was no determination that the city had previously engaged in discriminatory practices, and in fact, the city consistently maintained, as does the University in the present case, that it had never discriminated against minorities.
Admittedly, neither the University nor Bakke would have an interest in raising such a claim. But this fact alone would not justify us in making a finding on a factual matter not presented below.
In the course of the opinion, the court declared that a preference to minorities in university admissions is permissible if the state has a substantial interest in the program and that such an interest would be found if, on balance, the gain to be derived from the preferential policy outweighs its possible detrimental effects. It rejected the “compelling interest” standard which we have applied on the ground that the Fourteenth Amendment was adopted to guarantee equality for blacks and “by logical extension has come to include all minority groups” and that it would be “ironic and . . . would cut against the very grain of the amendment” were that provision used “to strike down measures designed to achieve real equality for persons whom it was intended to aid.” (384 N.Y.Supp.2d at p. 89.) The court acknowledged that a showing must be made that no nonracial alternative would serve the same purpose as a racially discriminatory policy and, although its language is not- entirely clear, it implied that the burden was upon the university to show that the preferential program fulfilled a substantial state interest and that there were no less intrusive alternatives available.
The opinion in A levy did not decide if the preferential program met a substantial state interest or whether an alternative less disadvantageous to the majority could have been devised, since it held that the petitioner would not have been admitted even in the absence of the program.
The dictum in Alevy appears to conflict with our analysis in this opinion only to the extent that it fails to apply the “compelling interest” measure. Since we have assumed, in this opinion, arguendo, that with minor exceptions the University has demonstrated that the special admission program serves a compelling state interest, even this conflict between the language of the New York court and this opinion is more apparent than real. Alevy suggests that the burden of showing that the state’s interest cannot be met by less intrusive means remains with the discriminator—an approach consistent with that which we adopt here. In sum, the decision in Alevy does not provide a convincing refutation of oúr determination that the special admission program is invalid.
The dissenting opinion justifies the special admission program on the ground that minorities have historically been the victims of discrimination and that preferences in their favor would provide diversity in the student body and integrate the University and the medical profession. This reasoning would sanction preferences on racial or ethnic grounds in all areas of society in which minorities are underrepresented if such preferences are “directly and reasonably related to the attainment of integration.” (Post, p. 81.) In an analogous situation, the Supreme Court has recently cautioned against the adoption of a rule which would have such far-flung consequences. In Washington v. Davis, supra, 426 U.S. 239. the high court held that, in order to establish unconstitutional discrimination, it was not sufficient to show that more black than white police recruits failed a written test, but that the plaintiffs were required to demonstrate that the test had a racially discriminatory purpose. In the course of its opinion, the court stated, “A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.” (426 U.S. at p. 248 [48 L.Ed.2d at p. 612].)
Frederick Douglass, the emancipated slave, perceived the problem clearly 130 years ago. In the Liberator for March 27, 1846, he wrote; “[TJhough I am more closely connected and identified with one class of outraged, oppressed and enslaved people, I cannot allow myself to be insensible to the wrongs and suffering of any part of the great family of man.” (Graham, There Was Once a Slave (1947) p. 305.)
In another context the Supreme Court has frowned upon the doctrine of rigid proportionality. In upholding the right of a state to ban picketing the purpose of which was to compel a store to hire Negroes in proportion to Negro customers, the high court held, “To deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations ip various cities.” (Hughes v. Superior Court (1950) 339 U.S. 460, 464 [94 L.Ed. 985, 991, 70 S.Ct. 718].)
Because of the manifest prejudice to educational institutions if we were to require that our holding herein be applied so as to set aside admission decisions made in the past, the rule we announce shall, with the exceptions hereafter specified, govern only those admission decisions made after the date this opinion becomes final in this court. However, our holding shall apply to Bakke and any other applicants who have filed actions for judicial relief on similar grounds prior to the filing date of this opinion.